Magna Carta: The Making and Legacy of the Great Charter by Dan Jones
Head of Zeus, 192 pp, £14.99, December 2014, ISBN 978 1 78185 885 1

George Cony, a London merchant, had once been a friend of Oliver Cromwell. But when the Lord Protector slapped a tax on silk imports without the consent of Parliament, Mr Cony protested that this was the sort of arbitrary behaviour for which Cromwell had lambasted the late king, and demanded that the unjust tax be repaid to him. Cromwell first tried to browbeat Cony into submission, then threw him in prison. Cony’s lawyer, the eminent Sir John Maynard, demanded that he be set free, and the judges in the case were minded to release him, invoking the provisions of Magna Carta against imprisonment without trial. The Great Oliver then committed Maynard to the Tower, summoned the judges and told them that ‘their Magna Farta should not control his actions which he knew were for the safety of the Commonwealth. He asked them who made them judges; whether they had any authority to sit there but what he gave them?’ Nor did Cromwell think any better of the Petition of Right, the reprise of Magna Carta designed by Sir Edward Coke to recall Charles I to his constitutional duty: according to Coke’s grandson Roger, he called it ‘the Petition of Shite’.

I can find scant mention of this menacing language and conduct in those biographies of Cromwell which have a soft spot for God’s Englishman. Christopher Hill skips lightly over it. John Buchan refers to it as ‘a farmyard jape’ and excuses it on the grounds that ‘this thing touched the heart of his authority and he could permit no weakening.’ Others suggest that the story is probably royalist propaganda (it occurs in Clarendon’s History of the Rebellion). This seems implausible, for in a trial after the Restoration, when the defence ventured to quote the clause in Magna Carta that ‘no free man shall be imprisoned except by the judgment of his peers or the law of the land,’ Lord Chief Justice Kelynge’s only answer was ‘to repeat with a loud voice Cromwell’s coarse rhyme “MAGNA CHARTA, MAGNA FARTA!!”’ Cromwell’s jape was obviously a byword. And for repeating it, Kelynge, a candidate for worst lord chief justice ever, was hauled before the bar of the House of Commons, where he made a pitiful apology; he was a broken man ever after. Pepys kept up with the proceedings: ‘I did also see their votes against my Lord Chiefe Justice Keeling, that his proceedings were illegal and that he was a contemner of Magna Charta, the great preserver of our lives, freedoms and properties – and an introduction to arbitrary government – which is very high language, and of the same sound with that in the year 1640.’

What is so striking, not for the first or last time in its 800-year history, is the ferocity of the hatred provoked by the Great Charter among its opponents, and the instinctive cherishing of it by its supporters. Nothing could have exceeded the fury of King John himself at Runnymede. Matthew Paris describes him as ‘gnashing his teeth, scowling with his eyes, and seizing sticks from the trees, began to gnaw them and after gnawing them to break them, and with increased extraordinary gestures to show the grief and rage he felt’. Even allowing for chronicler’s licence, we can believe that John felt every bit as humiliated by being forced to give up untrammelled power in England as he had by the loss of most of his French empire to Philip Augustus at the Battle of Bouvines the year before.

The meadow had been selected by the barons because witenagemots had supposedly met there since King Alfred’s day – ‘Runny’ comes from the same root as ‘rune’ or ‘secret’. The drama of the proceedings zings off the pages of David Carpenter’s magisterial new study. What Carpenter does better than his rivals or predecessors is to make clear the continuing intensity of events after Runnymede and the hectic pace of them. Within days of its sealing, engrossments of the Charter were sent to a dozen bishops in their dioceses as being the most reliable custodians and distributors (Clause 1 guaranteed the freedom of the English Church). Simultaneously, the 25 barons who were to oversee the Charter under the crucial Clause 61, the ‘security clause’, sent letters to all the county sheriffs, instructing them to take an oath of allegiance to the Charter and to elect 12 knights in each county to inquire into ‘evil customs’ needing reform. A whole parallel executive was being set up, quite independent of the king, and arrogating the power to punish him for any breach by heavy fines and confiscations. This was something unique and intolerable. Within ten days of the sealing, no fewer than fifty estates that John was said to have seized unjustly were returned to their previous owners, a dozen being among the 25 barons – the most barefaced example of self-interest in the proceedings. When the king met the barons at Oxford a month later, they treated him with contempt. John was in bed, unable to walk because of gout. The barons refused to come to him in his chamber. When he was carried into them on a litter, they refused to stand up.

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Letters

On his way to making the claim that ‘Magna Carta is back,’ Ferdinand Mount may have conceded more than was necessary to those modern critics who have asserted that the reforms of 1215 were ‘designed to benefit only a minority’, specifically not women or villeins (LRB, 23 April). Few today fret about the place of villeins in society: the charter’s alleged disregard for women gets considerably more attention – and yet may be entirely mistaken.

The Latin words in Magna Carta that are conventionally translated as ‘man’ and ‘men’ are homo and homines. But those words in fact meant ‘person’ and ‘people’. In the late 12th-century treatise on the laws of England, known by the name of Glanvill, we find the words ‘to a free person, whether male or female’ (libero homini tam masculo quam femine). Thus in Magna Carta all those references to liber homo and those guarantees of rights given liberis hominibus, such as clause 39 with its promise to put an end to arbitrary arrests and imprisonments and proceed only by the law of the land: all these were for women as well as for men.

It is undoubtedly the case that in early 13th-century England women were at a disadvantage compared with men, for example where owning property was concerned, but it was not Magna Carta that disadvantaged them, nor were they excluded from its provisions. It protected the property rights of widows and female heirs as well as those of male heirs. This fundamental fact about English law as declared in Magna Carta is hopelessly obscured by the usual translation of liber homo as ‘free man’.

John Gillingham
Brighton

I was disappointed that Ferdinand Mount did not mention A.P. Herbert’s Uncommon Law case Rex v. Haddock of 1926 or so, in which Mr Justice Lugg concludes:

I am satisfied that so little of Magna Carta is left that nothing of Magna Carta is left, and therefore that chapter on which the appellant relies must be taken to have perished with the others.

The appellant has done his country an ill service in raising this point, for but for his rash act generations of English orators might have continued in the fond belief that Magna Carta was still the abiding bulwark of our liberties, and for that act I shall order him to pay a further fine of five pounds. But it is no part of my duty to conceal the truth, and I am compelled to declare with some reluctance that Magna Carta is no longer law.